What is a question of judgment, what is neglect of a case and what is ignorance of the rules in legal malpractice? Sometimes this is an easy question, other times, slightly more complex. in MCCORD -v.- O’NEILL,; No. 08-3096-cv ; Summary Order; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2010 U.S. App. LEXIS 5139 we see the 2d Circuit’s general definitions;
 

"Construing all the facts in McCord’s favor, an independent review of the record shows that the district court properly granted O’Neill’s motion for summary judgment. "To state a claim for legal malpractice under New York law, a plaintiff must allege: (1) attorney negligence; (2) which is the proximate cause of a loss; and (3) actual damages." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006). Under this standard, "[a] complaint that essentially alleges either an ‘error of judgment’ or a ‘selection of one among several reasonable courses of action’ fails to state a claim for malpractice." Id. (quoting Rosner v. Paley, 65 N.Y.2d 736, 481 N.E. 2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985)). And, in general, "an attorney may only be held liable for ‘ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.’" Id. (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 554 N.Y.S.2d 487, 489-90 (N.Y. App. Div. 1st Dep’t 1990)).

Here, McCord’s malpractice claim rested on the allegation that O’Neill’s failure to contact Ron Lawrence, another employee of McCord’s former employer, as a possible witness constituted [*4] negligence, and that, had Lawrence been a witness in his case, the district court would not have granted Airborne’s motion for judgment of a matter of law and dismissed McCord’s discrimination claims. O’Neill met his initial burden of demonstrating that his decision was a reasonable strategic choice by showing that the only information regarding Lawrence in McCord’s possession at the time was Lawrence’s "Summary of Disciplinary/Attendance History." This document showed that Lawrence, a Caucasian, had received much the same disciplinary treatment as McCord, undermining McCord’s contention that calling Lawrence would have enabled him to demonstrate that his employer treated him less favorably than a similarly situated employee outside of his protected group. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). As the district court correctly observed, McCord adduced no evidence in response suggesting that O’Neill’s failure to contact Lawrence was negligent, or that this decision could have proximately resulted in the court’s unfavorable decision in Hill."

One aspect of legal malpractice litigation is the failure to follow developments in the law.  Rules change and not keeping up with the changes leads to mistakes, criticism and, later, litigation.  The rules for non-party discovery have undergone some changes over the years, and today’s decision is worth reading.

In Kooper v Kooper ; 2010 NY Slip Op 04147 ;Decided on May 11, 2010 ;Appellate Division, Second Department ;Angiolillo, J., J. the Court lays out an arc of procedure for non-party discovery.  Prior to 1984 a motion was required.  The rule was amended and then in 2002 the rule was amended again to allow for subpoenas instead of motions when seeking documents from a  non-party.  Now the rule again changes:
 

"Subsequent to Dioguardi, many of our cases involving nonparty discovery continued to hold that "special circumstances" must be shown (see e.g. Katz v Katz, 55 AD3d 680, 683; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725, 726; Attinello v DeFilippis, 22 AD3d 514, 515; Tannenbaum v Tenenbaum, 8 AD3d 360; Lanzello v Lakritz, 287 AD2d 601; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d 482, 483; Tsachalis v City of Mount Vernon, 262 AD2d 399, 401; Mikinberg v Bronsther, 256 AD2d 501, 502; Matter of Validation Review Assoc. [Berkun- Schimel], 237 AD2d at 615; Wurtzel v Wurtzel, 227 AD2d 548, 549), while many of our most recent cases have avoided the "special circumstances" rubric (see e.g. Cespedes v Kraja, 70 AD3d 622; Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 843-844; Tenore v Tenore, 45 AD3d 571, 571-572; Smith v Moore, 31 AD3d 628, 629; Matter of Lutz v Goldstone, 31 AD3d 449, 450-451; Thorson v New York City Tr. Auth., 305 AD2d 666). In light of its elimination from CPLR 3101(a)(4), we disapprove further application of the "special circumstances" standard in our cases, except with respect to the limited area in which it remains in the statutory language, i.e., with regard to certain discovery from expert witnesses (see CPLR 3101[d][1][iii]). On a motion to quash a subpoena duces tecum or for a protective order, in assessing whether the circumstances or reasons for a particular demand warrant discovery from a nonparty, those circumstances and reasons need not be shown to be "special circumstances."

Whether or not our cases have applied the "special circumstances" standard, however, they contain underlying considerations which the courts may appropriately weigh in determining whether discovery from a nonparty is warranted. We look, then, to the reasoning in our cases to find guidance with respect to the circumstances and reasons which we have considered relevant to the inquiry with respect to discovery from a nonparty. Since Dioguardi, this Court has deemed a party’s inability to obtain the requested disclosure from his or her adversary or from independent sources to be a significant factor in determining the propriety of discovery from a nonparty. A motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty (see Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d at 726; Tannenbaum v Tenenbaum, 8 AD3d at 360; Lanzello v Lakritz, 287 AD2d at 601; Tsachalis v City of Mount Vernon, 262 AD2d at 401; Matter of Validation Review Assoc. [Berkun-Schimel], 237 AD2d at 615), and properly denied when the party has shown that the evidence cannot be obtained from other sources (see Cespedes v Kraja, 70 AD3d at 722; Tenore v Tenore, 45 AD3d at 571-572; Thorson v New York City Tr. Auth., 305 AD2d at 666; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d at 483). Our cases have not exclusively relied on this consideration, however, and have weighed other circumstances which may be relevant in the context of the particular case in determining [*6]whether discovery from a nonparty is warranted (see Abbadessa v Sprint, 291 AD2d 363 [conflict in statements between the plaintiff and nonparty witness]; Mikinberg v Bronsther, 256 AD2d at 502 [unexplained discontinuance of the action against the witness, formerly a party]; Patterson v St. Francis Ctr. at Knolls, 249 AD2d 457 [previous inconsistencies in the nonparty’s statements]).

We decline, here, to set forth a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty in every case. Circumstances necessarily vary from case to case.
 

When one reads a decision in a pro-se legal malpractice case strange facts often emerge.  Aponte v. City of New York Department of Corrections et al.,09-2634-cv UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;010 U.S. App. LEXIS 9988 is no exception. 

Plaintiff has been litigating this case, in various forms, for a number of years.  It seems that plaintiff was now appealing from the denial of reconsideration of earlier decisions.  His argument is premised on legal malpractice, presumably the legal malpractice of his current attorney in the handling of the motions and reconsiderations motions. Now, plaintiff wants to re-open a 1998 appeal. 

"The district court did not abuse its discretion by denying Appellant’s Rule 60(b) motion for reconsideration because it was premised on the legal malpractice of counsel and not the merits of the underlying litigation. Likewise, the additional evidence referenced by Appellant was in support of his claim of legal malpractice. See Boule v. Hutton, 328 F.3d 84, 95 (2d Cir. 2003) ("Rule 60(b)(2) provides relief when the movant presents newly discovered evidence that could not have been discovered earlier and that is relevant to the merits of the litigation."); see also Fed. R. Civ. P. 60(c)(1) (a motion for Rule 60(b)(2) relief must be made "no more than a year after the entry of judgment").

Appellant requests that we "reopen" his appeal docketed under 98-9067-cv. We construe this request as a motion to recall [*3] our mandate and to reinstate his appeal. Our "power to recall a mandate is unquestioned." Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996). "However, this power is to be exercised sparingly . . . and reserved for exceptional circumstances." Id. (citations and internal quotation marks omitted). "’The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.’" British Int’l Ins. Co. v. Seguros la Republica, S.A., 354 F.3d 120, 123 (2d Cir. 2003) (quoting Calderon v. Thompson, 523 U.S. 538, 549-50 (1998)). Appellant fails to make any such showing. The only explanation he offers for waiting almost ten years to raise these claims is that he only "recently" received this Court’s decision in an "anonymous package," but concedes later in his brief that, in 2000, his counsel had informed him that his appeal, docketed under 09-9067-cv, had been decided. No argument is made as to why this Court should recall the mandate other than to request that we reopen the appeal so he can add a legal malpractice claim. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule . . . that a federal appellate [*4] court does not consider an issue not passed upon below."). Accordingly, we find no manifest injustice would result from not recalling the mandate because any appeal would be meritless."
 

In Berry v Utica Natl. Ins. Group ;2009 NY Slip Op 06935 ; Appellate Division, Fourth Department we see a situation in which plaintiff was suing Utica National Insurance Group and evidently there was communication between plaintiff and the defendant law firm. "evidence that plaintiff contacted defendant concerning his dispute with Utica National does not establish the existence of an attorney-client relationship absent further evidence of an "explicit undertaking [by defendant] to perform a specific task" (Wei Cheng Chang v Pi, 288 AD2d 378, 380, lv denied 99 NY2d 501; see McGlynn v Gurda, 184 AD2d 980, appeal dismissed and lv denied 80 NY2d 988).

How do these situations arise? Generally, there are telephone calls, and even letters between the attorneys and the plaintiff over starting a law suit. We cannot say what the evidence in this case was, but in typical cases, either the attorney takes on tasks 1,2,3 but not 4 (where 4 is the case sued upon), or there are "agreements to agree" over a retainer agreement that never jell.

One solution that is raised in almost every advice article for attorneys is a retention/no retention letter that states affirmatively, for example, that "we are not retained nor will we be representing you in the -______________ case.

The general rule is that one may not sue an attorney, unless that attorney was working for you. Privity is the concept that the attorney was hired by you, and worked for you. You may not sue the other party’s attorney, no matter how badly you were treated in court by that attorney.

As in all things, there are exceptions. Fraud, malicious behavior, and special circumstances might allow plaintiff to sue an attorney not his own. It did not work in this case, however. Fred W. Nelson, etc., respondent, v Stanley Kalathara, v. Claude Simpson, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 1313;

"A predecessor guardian had sold property belonging to the incapacitated person. The lawyer represented the purchasers and the purchasers’ lender in that transaction. The successor guardian alleged that the predecessor guardian misappropriated, inter alia, funds that were received from that closing that belonged to the incapacitated person. The appellate court held that the successor guardian’s allegations against the lawyer, that by virtue of his role in the real property sale, he knew or should have known that the incapacitated person would rely on his skills as an attorney to issue checks payable to the guardian, and not to the predecessor guardian individually, did not fall within the narrow exception of fraud, collusion, malicious acts, or other special circumstances under which a cause of action alleging legal malpractice may have been asserted absent a showing of actual or near-privity. "

For those who grew up in the shadow of WWII, the Nazis were a foreboding presence.  The war was over for the parents, and children learned of the war, the atrocities and the aftermath.  For the family in this case, Matter of Jacobsen ;2010 NY Slip Op 50816(U) ;Decided on May 10, 2010
Sur Ct, Monroe County , even in upstate NY, the war has never really ended.  Now, after a trip to the SDNY, the 2d Circuit and back, a legal malpractice portion ends.
 

"This case primarily comes before this Court to determine which of the parties is entitled to seek restitution for assets that were confiscated by the Nazi party in Germany in 1939. The Decedent, Gabriella Jacobsen, and her sister, Marianne Reitz Baer, were each entitled to half of the estate of Clara Kirstein, their mother, upon Clara’s death in Leipzig, Germany in 1939. However, upon Clara’s death, those assets ("the Kirstein Assets") were confiscated from the estate, and therefore did not pass to Gabriella and Marianne. Gabriella died on December 8, 1957 in Monroe County, New York survived by her husband, Erich Jacobsen, an infant son, Godfrey Jacobsen, and other family members, including the Petitioner, Thekla Stein Nordwind, and the remaining surviving distributees, Greta Hoerman, Peter Franke-Ruta and Michael Franke (collectively "the Nordwind Parties").[FN1] Gabriella’s will, which left her estate to her husband, Erich Jacobsen, was admitted to probate on January 21, 1958. Erich Jacobsen died on December 16, 1977. Pursuant to Erich’s will, his residuary estate passed to his son, Godfrey Jacobsen. Godfrey Jacobsen died on August 10, 1980, and left his residuary estate to Christel Gauger, who was not a blood relative of Godfrey or his parents, Gabriella and Erich Jacobsen. Christel Gauger died on September 23, 2008, a resident of Germany, and Dr. Michael Gauger ("Dr. Gauger" or "Respondent") was appointed as the German equivalent of her Executor and residuary beneficiary. Thekla Nordwind was appointed administrator of the Estate of Gabriella Jacobsen by this court on July 7, 2009 in order to pursue the Kirstein Assets.
 

No claim for restitution for the Kirstein Assets was filed by the June 30, 1993 deadline, so recovery was later sought through the Claims Conference, an organization that established a Goodwill Fund for those who did not file claims before the GPCA deadline. The Nordwind Parties retained an attorney, David J. Rowland, Esq., to file a claim with the Claims Conference on their behalf. Through circumstances that are not before this Court, in the end Mr. Rowland filed a claim on behalf of Ms. Gauger while arguably still representing the Nordwind parties, and obtained an Erbschein (a German certificate of inheritance) from the German Courts that established Ms. Gauger’s rights to pursue reparations for the Kiersten Assets due to her being Godfrey Jacobsen’s proper "legal successor" pursuant to the terms of the GPCA.

The issue sought to be determined by this Court, i.e., whether the Nordwind Parties are entitled to the right to pursue reparation under German Law, has been previously decided by the United States District Court for the Southern District of New York, in Nordwind v. Rowland, 2007 WL 2962350 (S.D.NY Oct. 10, 2007) (Pogue, J., sitting by designation) (the "Federal Court Action"). The Southern District’s decision was later affirmed by the United States Court of Appeals for the Second Circuit (Nordwind v. Rowland, 584 F.3d 420 (2d Cir. 2009), and the Nordwind Parties’ petition for panel rehearing before the United States Court of Appeals for the Second Circuit was denied (Order, Docket Number 07-4862-cv, (Dec. 10, 2009)). Despite the fact that the issue currently before this Court was raised in the context of the malpractice action against Mr. Rowland, the District Court fully addressed, under both German and New York law, whether the Nordwind [*3]Parties had an entitlement to the Kirstein Assets that originally would have gone to Gabriella Jacobsen.

The District Court completely determined the issue presented by the instant petition based both on German and New York law such that there is no ruling this Court could make on this matter that would not be barred by collateral estoppel."

We think there is no more difficult case in litigation than a legal malpractice action arising from a medical malpractice case.  The issues of proximity and "but for" multiply and boggle the mind.  One needs a medical expert as well as a legal expert, and while having to prove the causation in a medical malpractice case, hypothetically is difficult anyway, moving on to prove the causation in the legal malpractice portion squares rather than doubles the effort.

In Palumbo v Dell ; 2010 NY Slip Op 03889 ; Decided on May 4, 2010 ; Appellate Division, Second Department we see an example. In a simple situation in which the note of issue was not timely filed, plaintiff loses the whole case for lack of a medical expert.  Note that suing the attorney who did not file the note of issue is practically impossible, as proximate cause now must be proven to the 4th power.
 

"An action dismissed pursuant to CPLR 3216 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see Picot v City of New York, 50 AD3d 757; Sapir v Krause, Inc., 8 AD3d 356, 356-357; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197). Here the plaintiff failed to demonstrate the merits of his legal malpractice action, which alleged that the defendants were negligent in failing to pursue a strict products liability claim against the manufacturer of a phacoemulsification unit utilized during the plaintiff’s cataract surgery. Notably, the record is devoid of any expert medical evidence establishing the merits of the products liability claim, and there is no other showing that the plaintiff would have succeeded on such a claim (see N.A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732; Matera v Catanzano, 161 AD2d 687, 688; see also Ideal Steel Supply Corp. v Beil, 55 AD3d 544; Payette v Rockefeller Univ., 220 AD2d 69, 74). Accordingly, the Supreme Court [*2]properly denied the plaintiff’s motion (see Mosberg v Elahi, 80 NY2d 941, 942; Serby v Long Is. Jewish Med, Ctr., 34 AD3d 441). "
 

Sometimes, the highest court in the State answers the questions, and sometimes its the lowly Civil Court.  In Kushner v Eliopulos ;2010 NY Slip Op 50798(U) ;Decided on May 3, 2010 ;Civil Court Of The City Of New York, Kings County ;Fisher, J. we see a comprehensive decision setting forth all aspects of attorney-client compensation.
 

"[Despite the fact that Defendants failed to sign the retainer agreement, there was an implied promise that Defendants would pay the costs for Plaintiff’s legal services. Plaintiff proffered an agreement which the Defendants rejected. The absence of a signed written retainer agreement does not preclude the recovery of legal fees. Minz v. Gold, LLP v. Hart, 48 AD3d 526 (2nd Dept. 2008). An attorney who fails to obtain a written retainer agreement may recover the reasonable value of services rendered on a quantum meruit basis. Seth Rubenstein, PC v. Ganea, 41 AD3d 54 (2nd Dept. 2007); Volosevich v. Nunziata, 2008 NY Slip Op 51697U (NY Sup. Ct. 2008).
 

It is well established that a client may terminate his relationship with an attorney at any time with or without cause. Friedman v. Park Cake, Inc., 2006 NY Slip Op 8171 (1st Dep’t 2006); Campagnola v. Mulholl, 76 NY2d 38 (1990). Defendants terminated Plaintiff on April 15, 2009. When an attorney is discharged for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Id. When an attorney is discharged without cause, the attorney is limited to recovering in quantum meruit for the reasonable value of the services rendered. Id.

An attorney who is discharged without fault has an immediate right to recover the fair and reasonable value of the services rendered, determined at the time of discharge, and computed on the basis of quantum meruit, namely the value of the services. Cohen v. Grainger, Tesoriero & Bell, 81 NY2d 655 (1993); Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454 (NY 1989); Reubenbaum v. B. & H. Express, Inc., 6 AD2d 47 (1st Dep’t 1958); In re Estate of Montgomery, 272 NY 323 (1936). If a client exercises the right to discharge an attorney after some services are performed, but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services. Id. at 454; In re Cooperman, 83 NY2d 465 (1994). In general, factors to be considered include: (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer’s experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved. Diaz v. Audi of Am., Inc., 2008 NY Slip Op 10118, 2 (2d Dep’t 2008); Matter of Thompson, 2009 NY Slip Op 7855, 2 (2d Dep’t 2009).

An attorney’s alleged violation of a disciplinary rule does not, by itself, give rise to a private cause of action. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). However, in some cases conduct constituting a violation of a disciplinary rule may constitute evidence of malpractice. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). In legal malpractice actions the claimant must establish that "but for" the attorney’s negligence the result of the prior case would have been more favorable. Carmel v. Lunney 70 NY2d 169 (1987); Lemke v Zurich N. Am., 2009 NY Slip Op 29545 (NY Misc. 2009). "